C.W. Mining Company

Plain-English summary

C.W. Mining Company was cited at its Bear Canyon No. 1 underground coal mine after a mantrip left the mine without a self-contained self-rescuer for each rider. The judge found that the storage-plan violation was serious and involved high negligence, but that the evidence did not establish the significant-and-substantial designation. The parties settled by modifying the citation from a section 104(d)(1) citation to a section 104(a), non-S&S citation and reducing the proposed penalty to $500. Judge August F. Cetti approved the resolution, affirmed the modified citation, assessed the $500 penalty, and ordered payment within 40 days.

Decision snapshot

• Cited standards: 30 C.F.R. § 75.1101-23(a); 30 U.S.C. § 814(d)(1)
• Outcome: The citation was modified to delete the significant-and-substantial characterization, affirmed as modified, and assessed at $500.
• Key point: An isolated failure to provide self-contained self-rescuers on a mantrip supported a violation and serious potential consequences, but not an S&S finding on this record.

Full text (FMSHRC public release)

CCASE:
SOL (MSHA) v. C.W. MINING
DDATE:
19920225
TTEXT:

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Federal Mine Safety and Health Review Commission
Office of Administrative Law Judges
The Federal Building
Room 280, 1244 Speer Boulevard
Denver, CO 80204

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), Docket No. WEST 91-245
PETITIONER A.C. No. 42-01697-03627
v.
Bear Canyon #1
C.W. MINING COMPANY,
RESPONDENT

                               DECISION

Appearances: Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
Petitioner;
Carl E. Kingston, Esq., Salt Lake City, Utah,
for Respondent.

Before: Judge Cetti

 This case is before me upon a petition for assessment of

civil penalties under Section 105(d) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. 801 et seq. the "Act." The
Secretary of Labor on behalf of the Mine Safety and Health
Administration, (MSHA), charges the Respondent, the operator of
the Bear Canyon #1, an underground coal mine, with a 104(d)(1)
violation of a mandatory regulatory standard 30 C.F.R.
75.1101-23(a).

 The operator filed a timely answer contesting the alleged

104(d)(1) violation, its characterization as serious and
significant (S&S) and as unwarrantable failure, and the
appropriateness of the proposed penalty.

 Pursuant to notice, a hearing on the merits was held before

me at Salt Lake City, Utah, on January 28, 1992.
Stipulations

 At the hearing, the parties entered into the record the

following stipulations which I accept as established fact.

 1. C.W. Mining Company is engaged in mining and selling of

bituminous coal in the United States and its mining operations
affect interstate commerce.

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2. C.W. Mining Company is the owner and operator of Bear
Canyon #1 Mine, MSHA I.D. No. 42-01697.

 3. C.W. Mining Company is subject to the jurisdiction of the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et
seq. ("the Act").

 4. The Administrative Law Judge has jurisdiction in this

matter.

 5. The subject citation and order were properly served by a

duly authorized representative of the Secretary upon an agent of
C.W. Mining Company on the dates and places stated therein, and
may be admitted into evidence for the purpose of establishing
their issuance, and not for the truthfulness or relevancy of any
statements asserted therein.

 6. The exhibits to be offered by C.W. Mining Company and the

Secretary are stipulated to be authentic but no stipulation is
made as to their relevance or the truth of the matters asserted
therein.

 7. The proposed penalty will not affect C.W. Mining

Company's ability to continue business.

 8. C.W. Mining Company is a medium size mine operator with

361,826 tons of production in 1989.

 9. The certified copy of the MSHA Assessed Violations

History accurately reflects the history of this mine for the two
years prior to the date of the citation.

                        The Evidence Presented

 On September 6, 1990, MSHA issued Section 104(d)(1) Citation

No. 3414130 at the Bear Canyon No. 1 Mine operated by C.W. Mining
Company. The operator was cited for a violation of 30 C.F.R.
75.1101-23(a) because the operation on at least one occasion had
not complied with the approved plan for the storage of
self-contained self-rescuers.

 At the hearing the Secretary presented credible evidence

that supported a finding that the operator violated the cited
safety standard as alleged in the citation. The citation reads in
part as follows:

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The currently approved self-contained self-reserve
storage plan was not being complied with by the
operator.

           The 2nd East working section crew and foreman who
      observed exiting the mine at the end of their shift in
      a mantrip which did not have a "SCSR" unit for every
      person riding the mantrip. The mantrip did not have any
      "SCSR" units for any of the riders.

          On questioning the foreman, it was learned that "SCSR"
      units were not taken into the mine at the start of the
      shift. The foreman did not check any of his crew
      members for "SCSR" units nor did he obtain a unit for
      himself.

         The foreman stated, "he was familar with the storage
      plan" but did not check on units.

 The violation was promptly abated within 1/2 hour by

providing the mantrip with a sufficient number of SCSR units for
persons that would be riding the mantrip.

 Respondent presented evidence that each of the mantrips it

normally used to carry men in and out of the mine had the
required number of SCSR units. On September 6, 1990, the foreman
checked the SCSR units on the mantrip intended to be used before
the men left to go underground. As the mantrip was readied to go
underground, it was discovered that the transmission in the
mantrip would not operate properly, so the foreman obtained a
spare pickup, parked nearby, and used it to haul the men
underground. He did not check to see if this mantrip, the spare
pickup, had the required SCSR units.

 Respondent also presented evidence that each man in the crew

was wearing a filter type self rescuer throughout the shift and
extra SCSR units were stored throughout the mine underground
including enough SCSR units for all of the men stored at the
underground area, which was within 300 feet of the site where the
men were working. The men were less than 2,000 feet from the
nearest portal. The travel time while riding the mantrip from the
surface to the working section was ten minutes, and there were
locations along the mantrip travelway where SCSR units were
stored and available for use if needed.

 Respondent asserts that the mantrip is not required to stay

in the working section and very often leaves after delivering the

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men to their work station. There has never been an occasion in
the history of this mine when a miner has had to use a SCSR for
any reason. Respondent contends there were no fire hazards
existing at the time of the violation.

               Discussion and Disposition of the Issues

 At the hearing, after all issues were fully litigated and

both sides rested, the Judge with consent of the parties and in
open court with the respective attorneys and all witnesses
present, stated his impressions of what the evidence presented
established. The Judge stated that there was a violation of the
mandatory safety standard 30 C.F.R. 75.1101-23(a) as alleged in
the citation, the gravity of the violation was serious with a
potential of very serious injury and possible death, that
negligence was high and that the violation could well have
resulted from the operator's unwarrantable failure. The Judge
also stated the evidence established that the violation was not
S&S. Even though the violation caused a discrete safety hazard
that could result in serious injury or death, the evidence was
insufficient to establish that as a result of this isolated
violation, there was a reasonable likelihood, evaluated in terms
of continued normal mining operation, that the hazard contributed
to would result in serious injury.

 The parties, nevertheless, at the conclusion of the hearing

requested time to prepare and file written post-hearing briefs.
Within the 20 days allowed for filing of post-hearing briefs, the
parties reached and filed a settlement agreement covering all
issues and moved for approval of the settlement agreement. The
parties propose to modify the citation from a Section 104(d)(1)
citation to a 104(a) non-S&S citation and amend the proposed
penalty to $500.

 Based upon the evidence presented at the hearing, I find the

provision of the settlement agreement are appropriate, supported
by the evidence and consistent with the criteria in Section
110(i) of the Act. The amended proposed penalty of $500 is
assessed. It will not affect the operator's ability to remain in
business.

                                 ORDER

 1. Citation No. 3414130 is modified to delete the

characterization "significant and substantial" and, as so
modified, the citation is AFFIRMED and a penalty of $500 is
ASSESSED.

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2. Respondent is ORDERED TO PAY to the Secretary of Labor a
civil penalty in the sum of $500 in satisfaction of the citation in
question within forty (40) days of the date of this decision and
order, and upon receipt of payment by the Petitioner, this
proceeding is DISMISSED.

                                August F. Cetti
                                Administrative Law Judge